No. 10-1491

In the Supreme Court of the United States ________________________

ESTHER KIOBEL, ET AL., PETITIONERS

v.

ROYAL DUTCH PETROLEUM CO., ET AL.,

RESPONDENTS

_____________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________________

BRIEFBRIEFBRIEFBRIEF OFOFOFOF AMICI CURIAEAMICI CURIAEAMICI CURIAEAMICI CURIAE CENTER FOR CENTER FOR CENTER FOR CENTER FOR CONSTITUTIONAL RIGHTSCONSTITUTIONAL RIGHTSCONSTITUTIONAL RIGHTSCONSTITUTIONAL RIGHTS, , , , INTERNATIONAL INTERNATIONAL INTERNATIONAL INTERNATIONAL

HUMANHUMANHUMANHUMAN RIGHTSRIGHTSRIGHTSRIGHTS ORGANIZATIONSORGANIZATIONSORGANIZATIONSORGANIZATIONS AND AND AND AND INTERNATIONAL INTERNATIONAL INTERNATIONAL INTERNATIONAL LAW EXPERTS LAW EXPERTS LAW EXPERTS LAW EXPERTS IN SUPPORT OF IN SUPPORT OF IN SUPPORT OF IN SUPPORT OF PETITIONPETITIONPETITIONPETITIONERERERERSSSS

________________________

KATHERINE GALLAGHER Counsel of Record Center for Constitutional Rights 666 Broadway, 7th floor New York, NY 10012 (212) 614-6455 kgallagher@ccrjustice.org

TABLE OF CONTENTS

Page

1

TABLE OF CITED AUTHORITIES . . . . . . . . . 2i

STATEMENT OF AMICI . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. ‘GENERAL PRINCIPLES OF LAW’ IS A WELL-RECOGNIZED PRIMARY SOURCE OF INTERNATIONAL LAW

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. LIABILITY FOR EGREGIOUS CONDUCT BY CORPORATIONS IS

A GENERAL PRINCIPLE OF LAW. . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 24

APPENDIX A List of Amici Curiae . . . . . . . . . . . . . . . . . . . . 1a

2i

TABLE OF CITED AUTHORITIES

PageFEDERAL CASES

Arias v Dyncorp, 517 F. Supp. 2d 221 (D.D.C. 2007). . . . . . . . . . 18

Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . . 13

Doe v. Exxon, No. 09-7125, 2011 U.S. App. LEXIS 13934 (D.C. Cir. July 8, 2011) . . . . . . . . . . . . . . 10, 11, 24

Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) . . . . . . . . . . . . . . 17-18

Factor v. Laubenheimer, 290 U.S. 276 (1933) . . . . . . . . . . . . . . . . . . . . . 7

Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) . . . . . . . . . . . . . . 12

First National City Bank (FNCB) v.Banco Para El Comercio Exterior de Cuba,

462 U.S. 611 (1983) . . . . . . . . . . . . . . . . . . . . 14

Flomo v. Firestone Natural Rubber Co., No. 10-3675, 2011 U.S. App. LEXIS 14179 (7th Cir. July 11, 2011) . . . . . . . . . . . . . . . . . . 20

Flores v. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003) . . . . . . . . . . . . . . . 9, 14

2ii

Cited Authorities

PageGraham v. Florida, 130 S. Ct. 2011 (2010) . . . . . . . . . . . . . . . . . . . 8

Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) . . . . . . . . . . . . . 10

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) . . . . . . . . . . . . . passim

In re Klein, 14 F.Cas. 716 (C.C.D. Mo. 1843) (No. 7865) . . 8

Kline v. Kaneko 141 Misc. 2d 787 (N.Y. Sup. Ct. 1988) . . . . . . . 7

Lopes v. Reederei Richard Schroder, 225 F. Supp. 292 (E.D. Pa. 1963) . . . . . . . . . . 8

Roper v. Simmons, 543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . 8

Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) . . . . . . . . . . . . . . 10

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . 3, 16

FEDERAL STATUTES

Alien Tort Statute, 28 U.S.C. § 1350 . . . . . . . . . 3

2iii

Cited Authorities

PageFOREIGN AND INTERNATIONAL CASES

Association Canadienne contre l’Impunité v. Anvil Mining Limited,

2011 (Superior Court of Quebec) 500-06-000530-101 . . . . . . . . . . . . . . . . . . . . . 22

The Barcelona Traction, Light & Power Co. (Belgium v. Spain),

1970 I.C.J. 3 (Feb. 5) . . . . . . . . . . . . . . . . . . . . 14

Bil’in (Village Council) v. Green Park International Ltd.,

2009 QCCS 4151 . . . . . . . . . . . . . . . . . . . . . . . 22

Corfu Channel Case (Merits), 1949 I.C.J. 4 (Apr. 9) . . . . . . . . . . . . . . . . . . . . 7

Chorzow Factory Case, Permanent Court of International Justice (PCIJ), Reports 1928 A/17. . . . . . . . . . . . . . . . 7

Dagi v. BHP, (1997) 1 VR 428) (Austl.) . . . . . . . . . . . . . . . . . 18

Eastern Extension, Australasia and China Telegraph Co. (Gr. Brit.) v. U.S.,

6 R.I.A.A. 112 . . . . . . . . . . . . . . . . . . . . . . . . . 9

Flores v. BP Exploration Co. (Colombia), [Pending] Claim No. HQ08X00328 [Filed Dec. 1, 2008] EWHC (QB) . . . . . . . . . . 17

2iv

Cited Authorities

PageGonzalez, et al. v. United States, Case 1490.05, Inter-Am. Comm’n H.R., Report No. 52/07, OEA/Ser.L/V/II.130, doc. 22, rev.1 ¶ 42 (2007). . . . . . . . . . . . . . . . . 7

Guerrero & Ors v. Monterrico Metals Plc & Rio Blanco Copper SA, [2009] EWHC 2475,

[2010] EWHC 3228 (QB) . . . . . . . . . . . . . . . . . 17

Hiribo Mohammed Fukisha v. Redland Roses Limited

[2006] eKLR Civil Suit 564 of 2000 . . . . . . . . 18

International Status of South-West Africa, Advisory Opinion, 1950 I.C.J. 128 (July 11) . . 11

Internationale Handelsgesellschaft, Case 11/70, 1970 E.C.R. 1125 . . . . . . . . . . . . . 7

Lubbe v. Cape Plc [2000] 1 WLR 1545 . . . . . . . . . . . . . . . . . . . . . 17

Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (Jun. 27) . . . . . . . . . . . . . . . . . . 7

Prosecutor v. Kunarac, et al., Case No. IT-96-23-T & IT-96-23/1-T, Trial Judgment (In’tl Crim. Trib. for the former Yugoslavia Feb. 22, 2001) . . . . . . . . . . . . . . . . 7

2v

Cited Authorities

PageProsecutor v TotalFinaElf et al., Cour de cassation de Belgique, Arrêt, 28 March 2007 No. P.07.0031.F . . . . . . . . . . . 17

R v. Hape, 2007 SCC 26, 2 SCR 292 (Can.) . . . . . . . . . . . 22

Recherches Internationales Quebec v Cambior Inc.,

[1998] QJ No 2554, Quebec Super. Ct, 14 August 1998 . . . . . . . . . . . . . . . . . . . . . . . . 18

Union Carbide Corporation v. Union of India (1991) 4 S.C.C. 584; A.I.R. 1992 S.C. 248 (India) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Yao Essaie Motto & Ors v. Trafi gura Ltd & Anor,

EWHC (Q.B). HQ06X03370 (Eng.) . . . . . . . . . 19

INTERNATIONAL TREATIES

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989,

1673 UNTS 126, 28 I.L.M. 657 (1992) . . . . . . 6

European Council Regulation (EC) No 44/2001 of 22 December 2000, on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial

Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2vi

Cited Authorities

PageInternational Covenant on Civil and Political

Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967) . . . . . . . . . . . . . . . . . . . . . 6

International Court of Justice, June 26, 1945, 59 Statute 1055, 1060, 33 U.N.T.S. 993 . . . . . 6

Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, 37

I.L.M. 1002 (1998) . . . . . . . . . . . . . . . . . . . . . . 6

OTHER AUTHORITIES

JJ. Brierly, The Law of Nations (6th ed. 1963). . 11

Antonio Cassese, International Law (2001) . . . . 8

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (2006)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13

Concluding Observations for the United States, 2008, CERD/C/USA/CO/6 . . . . . . . . . . . . . . . . 23

European Center for Constitutional and Human Rights, Business and Human

Rights: European Cases Database . . . . . . . . . 16

Wolfgang Friedman, The Uses of ‘General Principles’ in the Development of International Law, 57 Am. J. Int’l L. 279

(1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

2vii

Cited Authorities

PageInternational Commission of Jurists, Business

and Human Rights - Access to Justice: Country Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

International Commission of Jurists, Report of Legal Expert Panel on Corporate Complicity

in International Crimes (2008) . . . . . . . . . . . 15

International Federation for Human Rights (FIDH), FIDH Guide on Corporate Accountability for Human Rights Abuses

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21

Nicola M.C.P. Jägers and Marie van der Heijden, Corporate Human Rights Violations: The Feasibility of Civil Recourse in The Netherlands,

33 Brook. J. Int’l L. 833 (2008) . . . . . . . . . . . . 19

Frances T. Freeman Jalet, The Quest for the General Principles of Law Recognized by Civilized Nations – A Study, 10 U.C.L.A. L.

Rev. 1041 (1963) . . . . . . . . . . . . . . . . . . . . . . 13-14

Menno T. Kamminga, The Next Frontier: Prosecution of Extraterritorial Misconduct before Non-US Courts in Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference (Willem J.M. van Genugten, Michael P. Scharf, and Sasha E.

Radin, eds., 2009) . . . . . . . . . . . . . . . . . . . . . . 22-23

2viii

Cited Authorities

PageLord McNair, Q.C., The General Principles of

Law Recognized by Civilized Nations, 33 Brit. Y.B. Int’l L. 1 (1957) . . . . . . . . . . . . . . . . 13

Anita Ramasastry, Mark B. Taylor and Robert C. Thompson, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes,

40 Geo. Wash. L. Rev. 841 (2009) . . . 16, 18, 19, 20

Anita Ramasastry and Robert C. Thompson, Commerce, Crime and Confl ict: Legal Remedies for Private Sector Liability for Grave breaches of International Law: A

Survey of Sixteen Countries, FAFO, 2006. . . 16, 19

Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, U.N. Doc. A/

HRC/4/035 (Feb. 9, 2007) . . . . . . . . . . . . . . . . 23

Charles S. Rhyne, International Law: The Substance, Processes, Procedures and Institutions for World Peace with Justice

(1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Allens Arthur Robinson, ‘Corporate Culture’As A Basis For The Criminal Liability Of

Corporations (Feb. 2008) . . . . . . . . . . . . . . . . 16, 20

2ix

Cited Authorities

PageRudolf B. Schlesinger, Research on the General

Principles of Law Recognized by Civilized Nations, 51 Am. J. Int’l L. 734 (1957) . . . . . . 11

Beth Stephens, Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies For International Human Rights Violations,

27 Yale J. Int’l L. 1 (2002). . . . . . . . . . . . . . . . 21-22

Trafi gura Found Guilty of Exporting Toxic Waste, BBC, July 23, 2010. . . . . . . . . . . . . . . . 19

U.N. Human Rights Comm., Gen. Cmt. No. 31,U.N. Doc. CCPR/C/21/Rev.1/Add.13

(Mar. 29, 2004) . . . . . . . . . . . . . . . . . . . . . . . . 23

Jan Wouters and Cedric Ryngaert, Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction, 40 Geo. Wash.

Int’l L. Rev. 939 (2009) . . . . . . . . . . . . . . . . . . . 21

3.

STATEMENT OF AMICI Amici curiae respectfully submit this brief pursuant to Supreme Court Rule 37 in support of Petitioners.1 Amici (listed in the Appendix) are international human rights organizations or international scholars who have an interest in the proper understanding and assessment of the liability of corporations for the conduct at issue in this case, and specifically the application of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, discussed in this Court’s decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), to corporations. Amici regularly examine the various ways that corporations can be held liable for egregious conduct.

The Second Circuit’s majority opinion in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) reh’g denied, No. 06-4800-CV, 2011 U.S. App. LEXIS 2200 (2d Cir. Feb. 4, 2011), rejected the proposition that corporations can be punished through a tort action under the ATS for conduct that violates customary international law on the faulty premise that there is no basis in international law for holding corporations legally liable. In so doing, the majority overlooked a

1 Counsel of record for all parties received notice at least ten days prior to the due date of the amici’s intention to file this brief. The parties have consented to the filing of this brief, and such consents have been lodged with the Court. No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No persons other than the amici or their counsel made a monetary contribution to this brief’s preparation or submission.

4.

well-recognized source of international law, namely general principles of law, which consists of principles derived from the domestic or municipal laws of legal systems around the world to determine whether there is a general principle of corporate accountability for the conduct at issue.

Amici respectfully submit this brief to urge that this Court grant certiorari, because an analysis of general principles of law demonstrates that international law provides that corporations can be held accountable for such egregious conduct as that for which the ATS provides a grant of jurisdiction.

SUMMARY OF ARGUMENT

The majority below conducted a flawed analysis of international law that led to an erroneous conclusion that corporations cannot be held liable for egregious conduct which rises to the level of a violation of customary international law. The majority ignored a well-recognized and often applied source of international law, namely the “general principles of law recognized by civilized nations.” Indeed, the only mention of general principles was a single reference in a footnote, in which the majority effectively dismissed general principles as an applicable source of international law, while continuing to focus narrowly on the issue of criminal liability for corporations. See Kiobel, 621 F.3d at 141, n. 43.

Focusing its inquiry on the treatment of corporations as a matter of customary international law, the majority rejected the “history of corporate

5.

rights and obligations under domestic law,” calling it “entirely irrelevant.” 621 F.3d at 118, n. 11. Because it failed to conduct a thorough – or indeed, any basic – examination of corporate liability in other nations, the majority concluded that the Alien Tort Statute (“ATS”) – and the remedy it provides for those who suffer egregious conduct in violation of the laws of nations – is “apparently unknown to any other legal system in the world.” 621 F.3d at 115.

Had the majority addressed itself to general principles of law, as this Court and other Courts of Appeal have done on numerous occasions when called to rule upon a question that implicates international law, it would have found that far from being “unknown,” the attribution of liability to a corporation for egregious conduct is in fact generally accepted and the provision of some form of redress to victims of serious corporate wrongdoing is commonplace. Notably, the majority concedes that corporations are liable as juridical persons under domestic law, Kiobel, 621 F.3d at 117-18, but it fails to recognize the relevance of this conclusion to an international law analysis drawing upon general principles of law.

As set forth below, corporate conduct is regulated under all national legal systems. While the form of punishment for egregious acts which constitute violations of law, including international law, may vary, corporate liability for such conduct is indeed a recognized general principle of law.

Although amici agree with Petitioners that courts should look to domestic law to determine whether corporations can be held liable under the ATS,

6.

amici are satisfied that an analysis of the general concepts underlying domestic laws, as a source of international law, provides a conclusion that is in conformity with U.S. domestic law: a general principle of law exists that corporations can be held liable for egregious conduct that falls within the scope of the ATS. The majority’s failure to consult general principles of law warrants immediate review and remand.

ARGUMENT

I. ‘GENERAL PRINCIPLES OF LAW’ IS A WELL-RECOGNIZED PRIMARY SOURCE OF INTERNATIONAL LAW

General principles of law are recognized as one

of the authoritative sources of international law, having been codified as a source of international law in the Statute of the International Court of Justice (“ICJ”)2 and other international treaties,3 and applied 2 The sources of international law are set forth in Article 38(1) of the Statute of the International Court of Justice, June 26, 1945, 59 Statute 1055, 1060, 33 U.N.T.S. 993. Article 38(1)(c) of the Statute provides: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: … (c) the general principles of law recognized by civilized nations.” 3 See, e.g., Rome Statute of the International Criminal Court, art. 21(1)(c), July 17, 1998, 2187 U.N.T.S. 90, 37 I.L.M. 1002 (1998); International Covenant on Civil and Political Rights, Art. 41(1)(c) Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967) (invoking general principles in relation to domestic exhaustion); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, art. 9, Mar. 22, 1989, 1673

7.

as a source by that court and its predecessor,4 other international and regional tribunals5 and national courts.6 General principles, which are drawn from the

UNTS 126, 28 I.L.M. 657 (1992). 4 See, e.g., Chorzow Factory Case, Permanent Court of International Justice (PCIJ), Reports 1928 A/17 at 29 (holding that “it is a general conception of law that every violation of an engagement involves an obligation to make reparation”); Corfu Channel Case (Merits), 1949 I.C.J. 4, 27 (Apr. 9) (relying on general principles of law and international custom to find that in times of peace, states have a right to send their warships through straits used for international navigation if the passage is innocent); Military and Paramilitary Activities (Nicar. v. U.S.),1986 I.C.J. 14 (Jun. 27) (ruling that the U.S. had violated “fundamental general principles of humanitarian law” by supporting Contra guerrillas in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors). 5 See, e.g., Prosecutor v. Kunarac, et al., Case No. IT-96-23-T & IT-96-23/1-T, Trial Judgment, ¶¶ 439-460 (In’tl Crim. Trib. for the former Yugoslavia Feb. 22, 2001) (identifying the relevant international law that would define rape by reference to the general principles of law as reflected in the basic principles common to most legal systems); Gonzalez, et al. v. United States, Case 1490.05, Inter-Am. Comm’n H.R., Report No. 52/07, OEA/Ser.L/V/II.130, doc. 22, rev.1 ¶ 42 (2007) (stating “that domestic remedies [regarding prosecution of domestic violence], in accordance with generally recognized principles of international law, must be both adequate . . . [and] effective.”). See also Case 11/70, Internationale Handelsgesellschaft, 1970 E.C.R. 1125 (finding “respect for fundamental rights forms an integral part of the general principles of law” protected by the court and the protection of those rights is “inspired by the constitutional traditions common to the Member States”). 6 See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 287-88 (1933) (considering whether a general principle exists such that double criminality in the context of extradition must be considered in the absence of such a requirement in the applicable treaty); Kline v. Kaneko, 141 Misc. 2d 787, 788 (N.Y. Sup. Ct. 1988) (affirming that under general principles of international law, heads of State and immediate members of their families are immune from suit); In re

8.

rules of the most significant “common points” of law,7 “constitute both the backbone of the body of law governing international dealings and the potent cement that binds together the various and often disparate cogs and wheels of the normative framework of the community.”8 General principles of law are intended to fill any “gaps that are bound to exist in the normative network of any community.”9

Of the four sources of international law codified in the ICJ Statute, only the last source – judicial decisions and scholarly writings – is identified as a “subsidiary means for the determination of rules of

Klein, 14 F.Cas. 716, 717 (C.C.D. Mo. 1843) (No. 7865) (holding “that [contractual] restrictions depend on general principles of international law and other parts of the constitution, especially that which prohibits the states from passing any law impairing the obligations of contracts.”). Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 295 (E.D. Pa. 1963) (admiralty). See also Graham v. Florida, 130 S. Ct. 2011, 2033-34 (2010) (life sentences without parole for juveniles who have not committed homicide); Roper v. Simmons, 543 U.S. 551, 575-77 (2005) (death penalty for juveniles). 7 Antonio Cassese, International Law, 151 (2001); See also Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 390, 392 (2006) (general principles “belong to no particular system of law, but are common to them all,” being the “fundamental principles of every legal system. …[m]unicipal law thus provides evidence of the existence of a particular principle of law”). 8 Cassese, supra note 7; see also Cheng, supra note 7 at 390 (general principles hold an “important position … in the international juridical order” and “lie at the very foundation of the legal system and are indispensable to its operation,” being applied “directly to the facts of the case wherever there is no formulated rule governing the matter” which is significant for “a system like international law, where precisely formulated rules are few.” 9 Cassese, supra note 7.

9.

law.” ICJ Statute, art. 38(1)(d). The majority erred in relegating general principles to a secondary or subsidiary source of international law, see Kiobel, 621 F.3d at 141n. 43, a designation which stands in contrast with precedent from other courts, including the Court of Appeals for the Second Circuit. See Flores v. Peru Copper Corp., 414 F.3d 233, 251 (2d Cir. 2003) (identifying treaties, international custom and general principles as “primary” sources of international law, and identifying judicial decisions and the work of highly qualified publicists as “secondary” sources).

The necessity of general principles is reflected in the US-British Claims Tribunal case, Eastern Extension, Australasia and China Telegraph Co. (Gr. Brit.) v. U.S.,10 which held that in the absence of a treaty and a specific rule of international law,

It cannot be said that there is no principle of international law applicable. International law, as well as domestic law, may not contain, and generally does not contain, express rules decisive of particular cases; but the function of jurisprudence is to resolve the conflict of opposing rights and interests by applying, in default of any specific provision of law, the corollaries of general principles, and so to find – exactly as in the mathematical sciences – the solution of the problem. … it is the method by which the law has been gradually evolved in every country resulting in the definition and settlement of legal relations as well between

10 6 R.I.A.A. 112 (American and British Cl. Arb. Under the Special Agreement of Aug. 18, 1910, 1923).

10.

States as between private individuals.11

In the context of the Alien Tort Statute, the role of general principles as a source of international law has been recognized and affirmed, most recently in the case Doe v. Exxon, No. 09-7125, 2011 U.S. App. LEXIS 13934 (D.C. Cir. July 8, 2011). See, e.g., Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) (en banc) (looking to general principles to decide exhaustion of domestic remedies requirements); see also Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) (same, in the context of the Torture Victim Protection Act). In Doe v. Exxon, the majority admonished the majority in Kiobel for overlooking general principles of international law as a source of the content of international law. See 2011 U.S. App. LEXIS 13934 at *123-24. The majority in Exxon distinguished a customary international law analysis, which looks to common practice or usage, from a general principle which “becomes international law by its widespread application domestically by civilized nations.” Id. at *125 (citations omitted).

Significantly, the majority in Exxon conducted a general principles analysis on the very question at issue in this case, whether a corporation can be held liable under the ATS, answering the question unambiguously in the affirmative. The majority in Exxon explained why resort to general principles is appropriate: domestic law “being in general more developed than international law, has always constituted a sort of reserve store of principles upon which the latter has been in the habit of drawing [because] a principle which is found to be generally 11 Id. at 114-15.

11.

accepted by civilized legal systems may fairly be assumed to be so reasonable as to be necessary to the maintenance of justice under any system.” Doe v. Exxon, 2011 U.S. App. LEXIS 13934, at *125-26 (quoting JJ. Brierly, The Law of Nations 62-63 (6th ed. 1963)).

The analysis does not look for “one law” for the entire world, but should be understood as “crystallizing a core of legal principles.” Rudolf B. Schlesinger, Research on the General Principles of Law Recognized by Civilized Nations, 51 Am. J. Int’l L. 734, 741 (1957) Notably, “outside of that common core the detailed legal rules followed by the various nations necessarily differ, and perhaps should differ.” Id. It is not required that a legal principle exists in the legal systems of all nations in order for it to be considered a “general principle of law recognized by civilized nations.” See, Charles S. Rhyne, International Law: The Substance, Processes, Procedures and Institutions for World Peace with Justice 62 (1971). Moreover, resort to general principles does not mean the application of domestic law, but rather the analysis of domestic law leads to a general principle recognized by civilized nations. Id. at 62-63; see also International Status of South-West Africa, Advisory Opinion, 1950 I.C.J. 128, 148 (July 11) (dissenting opinion of Judge McNair) (identifying a general principle “is not by means of importing private law institutions ‘lock, stock and barrel,’ ready-made and fully equipped with a set of rules…the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principles”).

12.

The majority in Kiobel fundamentally misunderstands the relationship of domestic law to international law. It recognizes the relationship between the two only to the extent that custom can be derived by national laws and practice; it demonstrates its disregard of general principles in stating that “the fact that a legal norm is found in most or even all ‘civilized nations’ does not make that norm a part of customary international law.” Kiobel, 621 F.3d at 118. See also id. (“[o]ur recognition of a norm of liability as a matter of domestic law, therefore, cannot create a norm of customary international law”) (emphasis in original).12

The Kiobel majority’s insistence that corporate liability must be established as a rule under customary international law in order to hold corporations liable under the ATS is a requirement that is inaccurately attributed to the discussion in Filártiga v. Peña-Irala related to a different question - the requirements for recognizing a norm under international law. Kiobel, 621 F.3d at 118, quoting Filártiga v. Peña-Irala, 630 F.2d 876, 888 (2d Cir. 1980) (“only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the [ATS]”) (emphasis added). There is nothing in Filártiga’s discussion of norm recognition that requires a court look to customary

12 To the extent that the majority examines practice of other nations, it focuses solely on the recognition of corporate criminal liability -- an odd focus in the context of assessing tort liability. See Kiobel, 621 F.3d at 141, n. 43.

13.

international law, while prohibiting it from looking to general principles of law – and domestic law as its source – for the issue of corporate liability.

While not a requirement to derive a general principle of corporate liability, it is notable that many of the developments related to corporate regulation occurred in the context of transnational corporate activity: a general principles analysis has aided the development of a number of areas of law related to corporate operations with international dimensions, including contract, anti-trust or trademark law.13 See Wolfgang Friedman, The Uses of ‘General Principles’ in the Development of International Law, 57 Am. J. Int’l L. 279 (1963). See also Lord McNair, Q.C., The General Principles of Law Recognized by Civilized Nations, 33 Brit. Y.B. Int’l L. 1 (1957) (discussing use of general principles in contract law in the context of international development or natural resource concessions involving multinational corporations); Frances T. Freeman Jalet, The Quest for the General Principles of Law Recognized by Civilized Nations – A Study, 10 U.C.L.A. L. Rev. 1041, 1043 (1963) (submitting that use of general principles has occurred

13 Indeed, legal “responsibility” has been recognized as a general principle: “[i]t is a logical consequence flowing from the very conception of law and is an integral part of every legal order.” Cheng, supra note 7, at 389. Responsibility and liability for breaches of law must be an integral part of the legal order applicable to corporations to provide sufficient legal certainty allowing parties to enter into contracts and otherwise engage in business with corporations, including those corporations that conduct business across borders. Such responsibility is also a necessary corollary to granting rights to corporations. See, e.g., Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).

14.

primarily in the area of private international law to “enlighten the international business world”).14

A comparative study of legal principles to ascertain a general principle is likely to “show that different systems apply substantially the same principles, though in very different form.” Friedman, supra, at 284. Such a comparative study, in relation to transnational corporations engaging in conduct that qualifies as a violation of international law, demonstrates that while the form of liability may vary between States, all States apply the principle that a transnational corporation can and should be held legally liable for its egregious conduct.

II. LIABILITY FOR EGREGIOUS CONDUCT

BY CORPORATIONS IS A GENERAL PRINCIPLE OF LAW.

All legal systems recognize the liability of corporations.15 See First National City Bank (FNCB) v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 628-29, n.20 (1983); see also Doe. v. Exxon, 2011

14 Accordingly, it is inaccurate to describe the legal principles for regulating corporate actions as solely matters of “several” concern between States, as the Kiobel majority suggests; particularly in the era of transnational corporate activity, it must be seen a matter of mutual concern. See generally Flores, 414 F.3d at 249-50 (discussing wrongs that are of “mutual, and not merely several, concern”). 15 Corporate personhood is recognized in all legal systems. See Case Concerning The Barcelona Traction, Light & Power Co. (Belgium v. Spain), 1970 I.C.J. 3, 38-39 (finding a “wealth of practice already accumulated on the subject” of corporate personhood and “lifting the corporate veil” in municipal law).

15.

U.S. App. LEXIS 13934 at *124 (finding that “[l]egal systems throughout the world recognize that corporate legal responsibility is part and parcel of the privilege of corporate personhood”). Such recognition of corporate liability for wrongful conduct, as a universal feature of the world’s legal systems, qualifies as a general principle of law. The form in which corporations are punished for their violations of law may vary – including civil, criminal administrative penalties – and the conduct at issue may be defined as a tort, a crime or, in some cases, as a violation of international law. There can be no doubt, however, that domestic legal systems recognize that corporations engaging in the conduct at issue in ATS cases can be held liable for their actions. See International Commission of Jurists, Report of the Expert Legal Panel on Corporate Complicity in International Crimes, Vol. 2, p. 58, Vol. 3, pp. 49-51, available at http://www.icj.org/default.asp?nodeID=349&sessID=&langage=1&myPage=Legal_Documentation&id=22851. See generally id., Vols. 1-3.

Comparative studies relating to liability for multinational corporations for egregious conduct carried out over the last decade demonstrate that a general principle of law exists allowing for corporations to be held legally responsible for egregious conduct, including conduct constituting a specific breach of a universal and obligatory norm under international law.16 An examination of liability in both the criminal

16 See, e.g., International Commission of Jurists, Report of Legal Expert Panel on Corporate Complicity in International Crimes, Vols. 1-3.(2008); International Federation for Human Rights, Corporate Accountability for Human Rights Abuses: A Guide for

16.

and civil context demonstrates the existence of the principle of corporate liability for serious transgressions of fundamental norms.17

Victims and NGOs on Recourse Mechanisms, 2010, available at: http://www.fidh.org/Corporate-Accountability-for-Human-Rights-Abuses; Anita Ramasastry & Robert C. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave breaches of International Law: A Survey of Sixteen Countries, FAFO, 2006, available at: http://www.fafo.no/pub/rapp/536/536.pdf (seeking to achieve some geographic diversity and represent different legal systems, examines corporate liability in Argentina, Australia, Belgium, Canada, France, Germany, India, Indonesia, Japan, Norway, the Netherlands, Spain, South Africa, Ukraine, the United Kingdom, and the United States). See also European Center for Constitutional and Human Rights (ECCHR), Business and Human Rights: European Cases Database, http://www.ecchr.eu/index.php/eonference_en.html; International Commission of Jurists, Business and Human Rights - Access to Justice: Country Reports http://www.icj.org/default.asp?nodeID=350&langage=1&myPage=Publications (containing detailed discussion of corporate accountability in Brazil, China, Colombia, Ecuador, India, The Netherlands, Poland, South Africa, and the Philippines). See also Allens Arthur Robinson, ‘Corporate Culture’ As A Basis For The Criminal Liability Of Corporations (2008), available at http://www.reports-and-materials.org/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf. 17 Certain civil law countries do not draw a clear distinction between criminal and civil proceedings, and instead allow for victims of a violation to seek damages from a defendant in a criminal case – a practice highlighted by Justice Breyer in his discussion of international comity in Sosa v. Alvarez-Machain. 542 U.S. 692, 762-63 (2004). See also Anita Ramasastry, Mark B. Taylor & Robert C. Thompson, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes, 40 Geo. Wash. L. Rev. 841, 886 (2009) (noting that Argentina, Belgium, France, Japan, the Netherlands

17.

Civil liability against multinational corporations for egregious conduct is both commonplace and regularly exercised, including for conduct that occurs outside the home jurisdiction of a corporation. For example, in the United Kingdom, domestic tort law has been used as a vehicle for seeking accountability against business entities for human rights violations committed outside the State borders. See, e.g., Lubbe v. Cape Plc, [2000] 1 WLR 1545 (H.L.) (claims for damages of over 3,000 miners who claimed to have suffered as a result of exposure to asbestos and its related products in the English defendant corporation Cape’s South African mines); Flores v. BP Exploration Co. (Colombia), [Pending] Claim No. HQ08X00328 [Filed Dec. 1, 2008] EWHC (QB) (complaint against BP in Colombia for serious environmental harm with devastating impact on the local population); Guerrero & Ors v. Monterrico Metals Plc & Rio Blanco Copper SA, [2009] EWHC 2475, [2010] EWHC 3228 (QB) (case on behalf of Peruvians detained and tortured while protesting at copper mine).

Indeed, as these examples demonstrate, many cases involving transnational activity brought under domestic law look quite similar to the fact-patterns that arise in ATS cases. See Prosecutor v TotalFinaElf et al., [Court of Cassation] March 28, 2007 PAS. No. P.07.0031.F (2007) (Belg.) (brought by Myanmar residents in Belgium against the French oil company, Total, arising out of the same pipeline construction project at issue in Doe v. Unocal Corp.,

and Spain employ the mixed civil/criminal mechanism of action civile that allows a crime victim or his representative to seek tort damages against a defendant in a criminal case).

18.

395 F.3d 932 (9th Cir. 2002)); Dagi v. BHP, (1997) 1 VR 428) (Austl.) (suit in the Supreme Court of Victoria, Australia by 30,000 natives of Papua, New Guinea, against a mining company for damages to their lands); Recherches Internationales Quebec v. Cambior Inc., [1998] QJ No 2554, (Quebec Super. Ct.) (Can. Que.) (suit in Canada by residents of Guyana against a Quebec company, which alleged environmental harms arising out of a toxic spill at a mining operation in Guyana); Union Carbide Corporation v. Union of India (1991) 4 S.C.C. 584; A.I.R. 1992 S.C. 248 (India) (case filed by residents of Bhopal, India, against the Union Carbide Company for extensive injuries and loss of life arising from the release of toxic gases from a chemical plant); Hiribo Mohammed Fukisha v. Redland Roses Limited [2006] eKLR Civil Suit 564 of 2000 (Kenya) (case filed in Kenya in which tort law provided the remedy for serious bodily harm caused by exposure to hazardous chemicals when spraying herbicides and pesticides).18 See also Translating Unocal, 40 Geo. Wash. Int’l L. Rev. at 887. One recent case against the multinational corporation domiciled in the Netherlands, Trafigura, addressed the dumping of toxic waste off the coast of the Ivory Coast leading to the death of an estimated twelve people and the sickening of thousands of people; this precipitated civil and criminal litigation in various jurisdictions,

18 See also Arias v Dyncorp, 517 F. Supp. 2d 221 (D.D.C. 2007) (claims of residents of Ecuador against U.S. contractor to recover under ATS, common law, international agreements and conventions for physical harm and property damage from herbicide spraying in Colombia survived motion for summary judgment).

19.

including the Ivory Coast, the Netherlands, and the United Kingdom. See, e.g., Yao Essaie Motto & Ors v. Trafigura Ltd & Anor, [2011] EWHC 90201 (Q.B). Claim No. HQ06X03370 (Eng.). See also Nicola M.C.P. Jägers and Marie van der Heijden, Corporate Human Rights Violations: The Feasibility of Civil Recourse in The Netherlands, 33 Brook. J. Int’l L. 833 (2008); Trafigura Found Guilty of Exporting Toxic Waste, BBC, July 23, 2010, http://www.bbc.co.uk/news/world-africa-10735255.

There is also growing acceptance for holding corporations liable under domestic criminal law.19 See, e.g., Translating Unocal, 40 Geo. Wash. Int’l L. Rev at 870 (identifying that half of countries surveyed – representing both civil and common law countries – “make it a general practice to recognize no distinction between natural and legal persons”); Allens Arthur

19 See, e.g. Code pénal [C. Pén.] art. 121-2 (Fr.); Dutch Penal Code art. 5 (Neth.); Criminal Code, R.S.C., ch. C-46, § 2 (1985) (Can.); Code pénal suisse art. 102a; Verbandsverantwortlichkeitsgesetz [VbVG] [Law on the Responsibility of Associations] Bundesgesetzblatt I [BGBl I] No. 151/2005 §§ 1- 2 (Austria); Code Pénal art. 5 (Belg.); The Indian Penal Code Act, No. 45 of 1860 Pen. Code §§ 2, 11; Penal Code. ch. 3, § 48 (Nor.); Penal Code, No. 19, ch. 2, art. 19 (b-c) (Ice.); Criminal Procedure Act 51 of 1977, §332 (S. Afr.); Crimes Act 1961, §2.1 (N.Z.); Criminal Code Act 1995 (Cth) s 12.1 (Austl.); Penal Code, art. 11 (Myan.); Revised Penal Code, ch. 9 (Fin.); Borgerlig straffelov [Danish criminal code], § 306; China Criminal Code Art. 30 (corporate liability for “unit crimes”); Revised Penal Code, Act No. 3815,(Phil.) (corporate liability if specified by individual penal statute). In Japan, two thirds of laws which provide punishment apply against corporations. See FAFO, A Survey of Sixteen Countries, supra note 16, at 6-7.

20.

Robinson, ‘Corporate Culture’ As A Basis For The Criminal Liability Of Corporations (Feb. 2008), available at http://www.reports-and-materials.org/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf. See also Flomo v. Firestone Natural Rubber Co., No. 10-3675, 2011 U.S. App. LEXIS 14179 (7th Cir. July 11, 2011) at *14. Even those countries that do not provide for criminal liability over legal persons in the same manner as natural persons allow for criminal liability in certain areas, including anti-terrorism law. See Thompson, Ramasastry, and Taylor, supra at 872 (discussing Argentina and Indonesia). And while some countries do not allow for criminal liability of legal persons, these countries (including Germany, Greece, Hungary, Mexico and Sweden) have adopted national laws to impose fines or other equivalent sanctions on corporations for certain violations – a punishment that mirrors that imposed by countries that allow for criminal liability.

Municipal laws that have as a “common core” the assignment of corporate liability for the egregious acts that fall under the ATS are increasingly being harmonized – a process unnecessary to demonstrate a general principle. And likewise, statutes and regulations that provide jurisdiction to adjudicate claims against corporations are becoming more widespread. For example in Europe, it has been codified that corporations domiciled in any member State of the European Union can be sued for torts that occur outside the jurisdiction of the home-State pursuant to the European Council Regulation (EC) No 44/2001 of 22 December 2000, on Jurisdiction and the

21.

Recognition and Enforcement of Judgments in Civil and Commercial Matters, Articles 2 and 60.20 Council Regulation 44/2001, arts. 2, 60, 2001 O.J. (L 12) 3, 13 (EC). See generally International Federation for Human Rights (FIDH), FIDH Guide on Corporate Accountability for Human Rights Abuses204-214 (2010). See also Jan Wouters and Cedric Ryngaert, Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction, 40 Geo. Wash. Int’l L. Rev. 939, 941 (2009) (while few cases have yet been brought, national courts in the European Union have jurisdiction over any defendant corporation that is “domiciled” in the EU, irrespective of where the harm occurred or the nationality of the plaintiffs).

The majority, erroneously, looked only to whether other countries had an exact replica of the Alien Tort Statute and when it failed to find an ATS clone in each country, it drew the incorrect conclusion that the liability allowed for in the ATS against corporations was an anomaly.21 See generally Beth

20 Art. 2 provides: “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.” Pursuant to Article 60(1) of the Brussels Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat, or (b) central administration, or (c) principal place of business. 21 One system does have a legal structure very similar to the United States, albeit without an equivalent of the Alien Tort Statute: Canada, where the common law can be used to assert tort claims against multinational corporations. Similar to the United States, the Supreme Court of Canada has ruled that customary international law is a part of Canadian domestic law. See R v. Hape, 2007 SCC 26, 2 SCR 292, para. 39 (Can.) (“the doctrine of

22.

Stephens, Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies For International Human Rights Violations, 27 Yale J. Int’l L. 1, 2 (2002) (looking for a replica of the ATS in other systems “reflects a misconception of the interrelationship between international law and varied domestic legal systems. Exact duplicates of Filártiga human right litigation are unlikely in most legal systems because of differences in legal procedure and legal culture”) See also Id. at 32-34. (explaining that each State translates its international law obligations into proceedings that are appropriate to its domestic civil and legal system); Menno T. Kamminga, The Next Frontier: Prosecution of Extraterritorial Misconduct before Non-US Courts,174 in Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference 172, 174 (Willem J.M. van Genugten,

adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada”). In Quebec, the Superior Court has found that allegations of war crimes, namely violations of international law such as the Geneva Conventions, would be recognizable as a civil fault (i.e. tort) under the Quebec Civil Code if committed by a corporation. See Bil’in (Village Council) v. Green Park International Ltd., 2009 QCCS 4151, para 190 (“if the Plaintiffs’ allegations are true, a trial judge could find that the Corporations are at fault for knowingly participating in Israel’s alleged illegal Policy”). See also Association Canadienne contre l’Impunité v. Anvil Mining Limited, 2011 (Superior Court of Quebec) 500-06-000530-101 (Superior Court of Quebec has found that it has jurisdiction over a company incorporated in Canada but also with ties to Australia and the Democratic Republic of Congo that is accused of involvement in a massacre in the Democratic Republic of Congo).

23.

Michael P. Scharf, and Sasha E. Radin, eds., 2009), (“In most European countries civil lawsuits against multinational enterprises for unlawful actions committed abroad would not require the Alien Tort Claims Act” because of EU Regulation 44/2001, which codified that corporations domiciled in the European Union can be sued for torts outside the home-State).

As demonstrated above, both through the laws and practice of other nations, the majority had sufficient evidence that a principle of corporate liability is found to be generally accepted by ‘civilized’ legal systems. Indeed, acceptance of this principle is evident not only in national laws but is also increasingly reflected in the practice of authoritative sources within the U.N. human rights system. See, e.g., U.N. Human Rights Comm., Gen. Cmt. No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 ¶ 8 (Mar. 29, 2004) (States must “redress the harm caused by such acts by private persons or entities”); Concluding Observations for the United States, 2008, CERD/C/USA/CO/6, at ¶30. (States have an obligation to remedy “any acts of racial discrimination,” including the acts of corporations). See also Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, U.N. Doc. A/HRC/4/035 (Feb. 9, 2007) (common law systems generally have corporate criminal liability and more civil law countries “are evolving independently towards greater recognition of corporate criminal liability for violations of domestic law”). Additionally, the general principle of corporate legal liability is reflected in the various international treaties that explicitly state that juridical entities should be liable

24.

for violations of the law of nations. See, e.g., Doe v. Exxon, 2011 U.S. App. LEXIS 13934, at *108-09, nn. 35-36 (treaty names and citations omitted).

As the majority in Exxon recently held, “[g]iven that the law of every jurisdiction in the United States and of every civilized nation, and the law of numerous international treaties, provide that corporations are responsible for their torts, it would create a bizarre anomaly to immunize corporations from liability for the conduct of their agents in lawsuits brought for ‘shockingly egregious violations of universally recognized principles of international law.’” 2011 U.S. App. LEXIS 13934, at *133-34.

Accordingly, as a matter of international law derived from the general principles of law of civilized nations, corporations can be held liable under the ATS.

CONCLUSION

The majority erred in holding that corporations cannot be held liable for egregious conduct under international law. Corporate liability is general principle of law recognized by civilized nations. As such, it is part of international law. To the extent that the ATS may require a finding of corporate liability under international law, one exists.

25.

Amici curiae respectfully submit that Petitioners’ petition for a writ of certiorari should be granted.

Dated: July 13, 2011

Respectfully submitted, KATHERINE GALLAGHER Counsel of Record CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th floor New York, NY 10012 (212) 614-6455

Appendix A

1a

APPENDIX

1a

APPENDIX AAPPENDIX AAPPENDIX AAPPENDIX A ———— LIST OFLIST OFLIST OFLIST OF AMICI CURIAEAMICI CURIAEAMICI CURIAEAMICI CURIAE

International Human Rights Organizations:

The Center for Constitutional RightsCenter for Constitutional RightsCenter for Constitutional RightsCenter for Constitutional Rights (CCR) is a nonprofit legal and educational organization dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Since its founding in 1966 out of the civil rights movement, CCR has litigated several international human rights cases under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, including Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), which established that the Alien Tort Statute grants federal courts jurisdiction to hear cases seeking compensation and other relief for violations of international law, Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000) and Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), or served as amicus in ATS cases.

The European Center for Constitutional and Human European Center for Constitutional and Human European Center for Constitutional and Human European Center for Constitutional and Human RightsRightsRightsRights (ECCHR) is an independent, non-profit legal organization dedicated to protecting civil and human rights. ECCHR also works to ensure that transnational companies are held to account for their operations in third countries where their operations lead to or are complicit in gross human rights violations. ECCHR not only builds and files strategic litigation cases for human rights violations against transnational companies in Europe, but also offers trainings for human rights organizations, lawyers and communities in countries of the global South, affected by transnational corporations.

2a Appendix A

The International Association of DemInternational Association of DemInternational Association of DemInternational Association of Democratic Lawyersocratic Lawyersocratic Lawyersocratic Lawyers (IADL) is a non-governmental Organization (NGO) with consultative status to ECOSOC and UNESCO. With members and member associations in 90 countries IADL lawyers work to promote human and peoples' rights. Since IADL’s founding in 1946 in Paris, IADL members have worked to promote human rights of groups and individuals and oppose threats to international peace and security. IADL lawyers have sought the development of international law, and international humanitarian law, and have opposed impunity for crimes and violations of the laws of nations. IADL lawyers supported litigation against the corporations which manufactured Agent Orange which was used in the Vietnam War.

The International Commission of Jurists International Commission of Jurists International Commission of Jurists International Commission of Jurists (ICJ) is an international non-governmental organization dedicated to the promotion and observance of the rule of law and human rights. The ICJ was created in 1952 and is composed of 60 well-known jurists representing different legal systems. It has its headquarters in Geneva, Switzerland, has three regional offices, and approximately 90 national sections and affiliated organizations throughout the world. It enjoys consultative status before the United Nations Economic and Social Council, UNESCO, the Council of Europe, and the Organization of the African Union. It maintains cooperative ties with the Organization of American States. The ICJ regularly addresses the United Nations Human Rights Council and other U.N. bodies to provide authoritative statements of international human rights law. It also

3a Appendix A

provides legal expertise in international law in the context of national and international litigation.

The International Federation for Human Rights International Federation for Human Rights International Federation for Human Rights International Federation for Human Rights (FIDH) is a federation of 164 Human Rights Organizations in more than 100 countries. Founded in 1922, FIDH co-ordinates and supports its member-leagues activities at the local, regional and international level. FIDH aims at obtaining effective improvements in the prevention of human rights violations, the protection of victims, and the sanction of their perpetrators. With activities ranging from judicial enquiry, trial observation, research, advocacy and litigation, FIDH has developed strict and impartial procedures which are implemented by world-renowned independent human rights experts. For more than a decade, FIDH has been focusing on the effects of globalization on the full recognition of human rights, and particularly the impact of business activities on economic, social and cultural rights.

Individuals:

Olivier De Schutter Olivier De Schutter Olivier De Schutter Olivier De Schutter is Full Professor at the Catholic University of Louvain and the College of Europe (Natolin), and a visiting professor at Columbia University. Professor De Schutter has been specializing inter alia on the protection of social rights and on the impact of globalization on the enjoyment of human rights. He has published widely on the subject, including Transnational Corporations as Instruments of Human Development, in Philip Alston & Mary Robinson (eds.), HUMAN RIGHTS AND

DEVELOPMENT : TOWARDS MUTUAL REINFORCEMENT,

4a Appendix A

Oxford Univ. Press, 2005, pp. 403-444; The Accountability of Multinationals for Human Rights Violations in European Law, in Philip Alston (ed.), NON-STATE ACTORS AND HUMAN RIGHTS, Collected Courses of the Academy of European Law, Oxford Univ. Press, 2005, pp. 227-314; The liability of multinationals for human rights violations in European law, in E. Brems & P. Vanden Heede (eds.), BEDRIJVEN EN MENSENRECHTEN. VERANTWOORDELIJKHEID EN AANSPRAKELIJKHEID, Antwerpen-Apeldoorn, Maklu, 2003, pp. 45-106.

Florian JessbergerFlorian JessbergerFlorian JessbergerFlorian Jessberger is a Full Professor of criminal law and holds a chair in criminal law, international criminal law and modern legal history at the Faculty of Law of the University of Hamburg. He is a Managing Editor of the Journal of International Criminal Law (Oxford University Press) and a co-author and co-editor of leading handbooks in the field of international criminal law, including PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, with Gerhard Werle, which translates into German, Spanish, Italian, Russian and Chinese, and the OXFORD COMPANION TO INTERNATIONAL CRIMINAL

JUSTICE.